The Nationality and Borders bill has passed its second reading in Parliament. This bill is the implementation of the ‘New Plan for Immigration’ Trojan horse, which the UN considers such a threat to refugee rights that it has taken the extraordinary step of publishing it’s firm opposition to the bill. The UN states that the plan, if implemented, will ‘undermine the 1951 [Refugee] Convention and international protection system, not just in the UK, but globally.’

The Bill includes powers to return refugees to countries through which they have travelled, which perhaps the government believed it had lost when we left the EU. The Dublin Regulation hierarchy was founded on the basis that another member state would assess the individual’s claim, but there are no such agreements that exist since the transition period expired. Despite this, the government still has the power to return an asylum seeker to another country if they have a right to live there – if a person has a safe third country where they could live (i.e. they have a right to live there already) then that is ground to refuse an asylum claim. 

The creation of a tiered system to assess refugee claims is an explicit statement that migrants who are able to get visas and flights, and travel to the UK without too much difficulty are preferable to those who have no choice but to flee on foot and arrive without having already received entry clearance. Under the new system, migrants with permission to be in the UK when they claim will have enhanced rights (including length and security of status and rights to make applications for family members) than those who arrive without prior permission. Refugee status determination is declaratory, a person is ‘declared’ to have been and be a refugee. If their claim is successful, and if the circumstances of their claim arose before they entered, then they were a refugee when they arrived, regardless of whether they had a business visa or arrived in a lorry. The discrimination between refugees on the basis of their mode of arrival will cause lengthy delays, considerable litigation, and beyond that is cruel and targets an extremely vulnerable group.

The proposals are also in breach of Article 31(1) of the Convention, which states that refugees cannot be penalised on the basis of illegal presence or entry if they came directly from a place where their life or freedoms were under threat. In this context, ‘directly’ refers to refugees travelling to the UK who may have travelled through other countries, may even have stopped there for a time, but who were always ‘en route’. It is worth remembering that it would always have been anticipated that people would travel through countries on their way to safety.

We did need a new plan for our immigration system – a fair and humane framework that produces reasoned decisions efficiently. This bill will not deliver that. It will deliver uncertainty, unfairness, and will result in a proliferation of asylum cases in the Tribunal.

For more information about our Immigration team, visit our web page here.